Monthly Archives: July 2016

court grants motion to dismiss on nominative fair use grounds

Beachbody, LLC v. Universal Nutrients, No. 16-02015, 2016 WL 3912014 (C.D. Cal. July 18, 2016) Beachbody sued Universal and Wal-Mart for using its “shakeology” mark on product packaging and purchase receipts. The court granted defendants’ motion to dismiss—apparently the standard … Continue reading

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Standard competitive bluster can be used as evidence of bad faith

Hillman Group, Inc. v. Minute Key Inc., 2016 WL 3654437,  No.13-cv-00707 (S.D. Ohio Jul. 8, 2016) Hillman makes duplicate keys, sold in at mass merchants, home centers, automotive parts retailers, franchise and independent hardware stores, grocery/drug chains, parcel shipping outlets, … Continue reading

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Primary jurisdiction doesn’t defeat supplement false advertising claim

Nutrition Distribution LLC v. Custom Nutraceuticals LLC, No. CV-16-00173, 2016 WL 3654277 (D. Ariz. Jul. 8, 2016) The parties compete in the nutritional supplement market; defendant Custom sells Ostarine, a selective androgen receptor modulator (“SARM”) with effects similar to those … Continue reading

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Volunteer moderator plausibly alleged to be agent of ISP for 230 purposes

Enigma Software Gp. USA LLC v. Bleeping Computer LLC, 16 CV 57 (S.D.N.Y. Jul. 8, 2016) Eric Goldman probably won’t like this decision holding that a volunteer moderator may be treated as the ISP’s agent when the ISP gives enough … Continue reading

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Discoverable falsity is immaterial to sophisticated consumers

Reed Const. Data Inc. v. McGraw-Hill Companies, Inc., 638 Fed.Appx. 43 (10th Cir. 2016) Allegedly false claims about the quality of construction project data offered by these competitors were, even if false, not material to consumers, because the consumers were … Continue reading

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Pom and circumstance: Pom Wonderful wins against Pur Pom

Pom Wonderful LLC v. Hubbard, No. 13-06917, 2016 WL 3621281 (C.D. Cal. Jun. 29, 2016) Disclosure: I consulted with Pom on an earlier iteration of this litigation, though I have not been involved subsequently.  Even when courts in the Ninth … Continue reading

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Questionable branding

Not exactly on topic, but funny: Trader Joe’s often uses some signals about what national brands one can compare its house products to. Here, while Cheerios and Spaghettios are hard to confuse, the result is two different kinds of Joe’s … Continue reading

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7th Circuit affirms rare right of publicity loss based on ad

Martin v. Living Essentials, LLC, No. 16-1370, — Fed.Appx. —- (7th Cir. Jun. 30, 2016) The Seventh Circuit knocked this affirmance out quickly—here’s my discussion of the Jan. 2016 district court decision. Guinness World Records lists Johannes “Ted” Martin as … Continue reading

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Update: that’s not actually the latest in B&B!

My mistake. The latest is that after the ruling I just wrote about, there was a jury trial, which produced findings that (1) Hargis infringed the federally registered mark, (2) there were no damages/profits awardable from the infringement and the … Continue reading

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Guess what the latest development in B&B v. Hargis is?

B&B Hardware, Inc. v. Hargis Industries, Inc., No. 06CV01654, 2016 WL 3615833 (E.D. Ark. May 16, 2016) So, despite all the commotion surrounding this case, B&B forgot to renew its registration, which was duly cancelled.  A cautionary story for clients!  … Continue reading

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